LORD SUMPTION:
1.
In these proceedings, Mrs Harding claims that she was removed from
office before the expiry of her final term in breach of the Constitution of
Anguilla, and that she had a legitimate expectation of reappointment which was
violated by the failure to reappoint her. Her claim was rejected in the High
Court and again in the Eastern Caribbean Court of Appeal for reasons which
appear to the Board to be entirely correct. They will therefore content
themselves with indicating briefly the points which were argued and the reasons
why they have now failed at every stage.
2.
The Constitution of Anguilla provides:
“Power to appoint, etc, to
judicial offices
68(1) Power to make appointments
to the offices to which this section applies and to remove and exercise
disciplinary control over persons holding or acting in such offices shall vest
in the Governor, acting after consultation with the Judicial Service
Commission.
(2) This section applies to
the office of Magistrate, to any office in the public service of any registrar
or other officer of the High Court who is required to possess legal qualifications
and to such other offices in the public service, for appointment to which
persons are required to possess legal qualifications, as may be prescribed by
any law for the time being in force in Anguilla.”
3.
Mrs Harding was the first holder of the office of Registrar of the High
Court of Anguilla. She was originally appointed for a term of two years with
effect from 10 January 1999. On the expiry of that term she was reappointed for
six further consecutive terms, the last one expiring on 10 January 2012. The
terms of her appointment were set out on each occasion in a written contract.
Three clauses of the final contract, dated 21 January 2010, are relevant. The
first, clause 1, provided that her appointment was limited to two years, from
11 January 2010. The second was clause 7, which entitled the Governor to
terminate her appointment at any time without cause on three months’ notice
after consulting the Judicial Service Commission. The third was clause 11,
which provided that six months before the end of the term her appointment would
be advertised, and that if she wished to be considered she must submit a
curriculum vitae, which would be submitted to the Governor along with the
curriculum vitae of any other suitably qualified applicant.
4.
The first point to be made is that Mrs Harding was not removed from
office. Her contract expired by effluxion of time on 10 January 2012. The
letter of 14 December 2011 from the Department of Public Administration, which
informed her that she would not be reappointed, said that her term of office
would accordingly end on 10 January 2012. It also directed her to take 14 days
of her unclaimed vacation entitlement from 16 December 2011 to 10 January 2012.
The sole basis on which she claims to have been dismissed before 10 January
2012 is (i) that the same letter proposed that she should be paid three months’
salary in lieu of notice under clause 7(1); and (ii) that she was directed to
surrender her office keys before the start of her vacation, and access to her
work computer files was blocked while she was away. Since she had not been
dismissed on three months’ notice under clause 7(1) the reference to that
clause was a mistake. She had not, however, been informed of the Governor’s
decision not to reappoint her three months before the termination of her
contract, as required under clause 11(2), and the judge held that the three
months’ salary paid to her was adequate compensation for that failure. That
could not amount to a summary dismissal. As to the keys and the computer files,
the steps taken by her employer assumed that she would be on vacation for the
remainder of her term of office. It was manifestly not a repudiation of what
remained of her contract or a premature dismissal.
5.
In those circumstances, Mrs Harding’s only possible complaint was that
she should have been reappointed. Contractually, she had no right to be
reappointed. Her appointment was for a limited term and provided that six
months before the expiry of that term her job would be advertised. She does not
claim that the constitution gives her security of tenure. That would have been
an impossible contention given the absence of any express right to tenure in
the Constitution and the well established principle that the holder of a lower
judicial office may properly be employed on a fixed term contract: see Hinds
v The Queen [1977] AC 195, 218 (Lord Diplock). Instead, it was submitted on
Mrs Harding’s behalf that as the incumbent office-holder she had a substantive
legitimate expectation of reappointment. The difficulty about this submission,
and it is an insuperable one, is that the practice of opening appointments to
competition at the expiry of their terms had been formally adopted and
announced by the Department of Public Administration in 2004 and notified by
letter to Mrs Harding. Subsequent contracts had been on terms similar to clause
11 of her latest contract of 2010. Indeed, on 8 July 2011 she had written
asking to be “considered for a further period of employment”, expressly
invoking that clause. A legitimate expectation is not the same as an
unqualified right. It is a factual situation in which a public authority has caused
a person to believe on reasonable grounds that he or she would enjoy some
advantage. If, which the Board doubts, Mrs Harding had ever had a legitimate
expectation of reappointment, it could not have survived the notification to
her in 2004 of the administration’s intention to open public appointments to
competition at the expiry of their existing terms, or her consent to the terms
of successive contracts drawn on that basis thereafter.
6.
Mr Fraser, who appeared for Mrs Harding, rather tentatively proposed
that his client had a relevant procedural legitimate expectation, but had some
difficulty in explaining what that expectation was. In principle, it would have
to be an expectation as to the procedure by which the appointment process would
be conducted as the expiry of her term approached. However, the only aspect of
the procedure which he could point to as conflicting with her expectation was the
requirement that she should attend for interview. She refused to do that
because she considered that she was entitled as of right to be reappointed. If
she had been entitled to reappointment as of right, she would no doubt have
been justified in refusing to be interviewed for the job. But if not, she could
properly be required to submit to any requirement which it was reasonable to
impose on candidates generally, including an interview. It therefore follows
from the Board’s conclusion that she had no substantive legitimate expectation
of reappointment, that she had no relevant procedural legitimate expectation
either.
7.
Finally, it was argued that the order of the Court of Appeal should be
set aside because of the inordinate delay (two years) between the argument of
the appeal and the delivery of judgment. The Board agrees that the delay was
inordinate. The appeal involved no disputed facts or difficult points of law.
The Board is not aware of the reasons for the delay but finds it difficult to
envisage what reasons could possibly justify a delay of that order. However,
save possibly in cases where the delay appears to have affected the Court of
Appeal’s command of the issues, it cannot be a ground for setting aside the
Court of Appeal’s order, least of all when the effect of that order was to
affirm the correct decision of trial judge.
8.
In these circumstances, the Board will humbly advise Her Majesty that
this appeal should be dismissed. The parties should make any submissions on
costs in writing within two weeks.
